The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1887-04-26
THE FISHERY DISPUTE.
The Treaty of 1919 Construed by a
Distinguished Canadian.
An Opinion That SustaIns the Amerl-
can Construction
Full Text of the Letter from Hon. Will
liam McDougalI, c. 3.

Dy me IN an OH-nanu interview with a mem
| Der of the ottawa press, ON the proper con
| struction Of the Convention Of 1918 has Oc
| casioned some inquiries from abroad ant
| some adverse criticisms at home. Thl
strained predicament Of our international re
lations Is undoubtedly serious question fol
Canadians. | have been, as you were goOC
enough to inform your readers, Minister OF
the Crown in this, my native country, and
claiming to be loyal subject Of Her Majesty
(whose hand have kissed and whose per.
sonal hospitality have enjoyed, / am ex-
eeedlngly anxious that no misrepresentation
OF meaning or Misrepresentation Of motive
shall be possible in my case. Will YOU.
therefore, kindly publish the following re.
statement Of nay views as TO the true inter.
probation Of Article of the Convention Of
1918, including few Of the authorities | re-
ly upon to sustain it. The influential posi-.
tion and wide circulation of the Herald, as
well as my sympathy with its political pro
gramme, incline me to ask this favor.
Ihe following are the material portions OF
the text to be construed
"Article l.. Whereas differences have arisen
respecting the liberty claimed by the United
cure fish In certain coasts, bays, harbors and
creeks OF His Britannia Maiesty's dominiOns In
America, II Is agreed between the high contract
ing parties that the inhabitants OF the said United
States shall have forever in common with the sub
ects Of His Britannia Majesty the liberty TO take
nSh Of every kind on certain specified parts Of TIE
coast Of Newfoundland, the Magdalen Islands.
Labrador, &C., with liberty forever 20 dry and
cure FISH In any Of the unsettled bays harbors and
creeks, &C., OF the described coasts, but requir-
Ing previous agreement with the settlers, Il any,
for this purpose.
"And the United States hereby renounce any
liberty heretofore enjoyed or claimed by the in
habltants thereof TO take, dry, or cure fish on OF
within three marine miles OF any OF u coasts,
W dominiOns In America not included within the
aforementioned limits provided however that
the American fishermen shall be permitted 70 en-
ter such bays or harbOrs for shelter, and Of re
pairing damages therein, of purchasing wood
and OF obtaining water, and for no other purpose
whatever. But they shall be under such restric-
tons as may be necessary TO prevent their taking
drying, or curing fish therein, or In any other
manner whatever abusing the privileges hereby
reserved TO them" Convention 1879.
The Canadian contention may be stated as
follows:
1. Tia. renouncing forever any liberty
heretofore enjoyed or claimed to take, dry,
or cure fish n'os. within three marine miles
OF the coasts, bays, bEeekS, or harbOrs, &C.
the United States renounesd, also forever,
the liberty heretofore enjoyes ''by the in.
habitants thereof, to enter Tuesdays, har.
bors. &c, with fishing vessels for~she pur.
pose Of barter or trade in goods or coiiifncdi,
ties OF any kind except purchasing wOodS'
2. That by ren0uncing the liberty to take,
dry, or cure fish within the three miles, the
inhabitants of the United States" also re.
nouneed the right Of innocent passage" In
vessels used for fishing purposes over the
high seas within three miles Of the coasts
&c.
8. That fishing vessels within the three.
mile limit may lawfully be seized by Cana.
dian cruisers, or vessels Of war, and refusing
to submit, may be pursued, fired upon, and
captured by force.
4. That vessels so captured If found rby a
Canadian COURT guilty of [dl fishing" or
lbl preparing to fish" or lei "tO have been
tishing, within three marine miles Of any
OF the coasts, &C., or ldl 'has entered such
waters for any purpose not permitted by the
law Of nations, or by treaty or convention.
or by any law Of the United Kingdom or of
Canada" or lei having entered" the three
such law shall, with their rigging, cargo,
&c, 'be forfeited" and sold for the benefit
Of the eaptors.
Canadian Fisheries Act, 81 Vic, Cap. 81,
and amendments)
The United States contention, as | under.
tsand it, may be stated as follows:
l. That Article | Of the Convention OF
1918 was remuneration by the United States
OF right previously enjoyed by the inhab-
itants thereof ito take, dry, and cure'fsh on
coasts, bays, etc, mentioned therein; and
that nothing else was renouneed, either ex-
pressly or by implication.
2 That the motive or consideration fOI
that remuneration was the agreement OF
Great Britain to acknowledge the common
United States to take fish, etc, on the coasts
Of Newfoundland and other specified parts
of British territory.
8. That the United States have never re.
asserted or claimed the liberty renounced by
Article /, and therefore have not violated
the Convention of 1918.
4. That while the said Article deprives In.
haDltants OF the United States of any liberty
they before enjoyed to take, dry, or cure fish,
on or within three marine miles Of any Of
the coasts, bays, etc, mentioned therein, il
does not deprive them Of any other right OF
privilege secured to the inhabitants Of the
United States by treaties Of commerce and
navigation between the two nations
8. That Canada's assumption Of power to
convert the renunciati0n Of a right 10 take
| fish in certain part of the sea, and 10 dry
and cure the fish so taken on certain coasts
into an Affirmative contract against CONNER
cial intercourse" which Is secured by treaty
to all the inhabitants Of the two countries, I
not only unwarranted by the terms O
the Article, but is a breach Of comfy, and al
| reprisal
II have correctly stated the materia
| points or issues between the parties In thi
International dispute, may be permitted,
hope, as Canadian citizen, TO express m
belief that the contention Of our neighbOr
as to the true meaning and scope Of the fish
| cry article Of the convention Of 1918, cannO
| be honestly denied. 1st Because the icOrd
import that the subject matter IS the settle
| ment Of differences" respecting the liberty
| claimed 'to take, dry, and cure JlSh." Th'
preamble, which our champions seldom quote
| expressly limits the article to this one sub
/ iect. Courts and lawyers, since the time oil
i Coke, have regarded the preamble of
statute as the key to its meaning. Coke
| 4th inst, S30) In our days preambles are
| not much used in statutes, but they are still
| deemed essential in treaties and conventions
| lSee the Treaty Of Washington, 1871 I'd
Because 1t Is well settled rule with iurist.
and legal tribunals that words are TO be un
derstood according to the subject OF them
The rule was thus expressed by the civil
lans: Ferbd generdlid reStringuntur dd hdb
| iHtdtem rel rel dptitudinem perSon0. Gen
eral words must be restricted TO the
nature, of the subjectmatter or the
Max. Reg. 10. Sd. Because tSV distIng1ishea IU
writer's on International law acknowledged
as authorities in this department of iuris-
| prudence by the learned of both nations) in.
| forms us that: Treaties of every kind
when make by competent authority are al
obligatory upon nations as private contracts
1 arc binding ON individuals, and they ara Il
/ receive a fair and liberal interpretation an,
| To be kept with the most scrupulous goo,
faith. Their meaning is to be ascertaine,
by the same rules OF ofeOnstruction and cOurs
| OF reasoning which we apply to the inter
probation of private contracts" (Kent's in
ternational law, edited by. Dr. Abby, lat
regius professor of laws in the University .
Cambridge, 1877. p 591.l
1 Another passage may be quoted as bearinl
| upon the recent action of Congress: "If
treaty should in fact be violated by one o
the contracting parties, either by proceeding
incompatible with the particular nature 0
the treaty, or by an intentional breach o
| any OF its articles, 1t rests alone with the in
jured iparty to pronounce it broken" (pI
| 391, 392)
DIR. Lieber, very high authority:on tn
rules OF Interpretation and construction, de
clares that ''the more the text partakes o
the nature Of compact or solemn agree
ment the closer ought to be its cOnstruC
tion," and that"w words are always understoo'
as having regard to tho subject matter
illegal and Political Hermeneutics, Prof
Hammond's edition. 1880, PIP. 1856, 1897
The rule of close construction was applie
In famous controversy between the sam
parties as to the true construction an
meaning" of Article / Of the Treaty 0
Client, respecting the carrying away" o
slaves by British ships at the close Of tn
war of 1872. Having been referred to tn
Emperor Of Russia, that distinguished arbi
traitor advised, no doubt, by the first diplC
mat of his time, Count Nesselrode,) held tina
he must decide upon the construction 0
the text Of the article as it stands" and ''aC
cording to the literal and grammatics
sense" The respective plenipotentiarie
acquiesced, and the Gar gave judgment /
favor Of the slave owners, strictisSimi jltri,
| The dispute. which began in 1914, was fna